EMPLOYEE’S RIGHT

TO PRIVACY!

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 The Balancing Act

When we start to look at an

employee’s right to privacy,
what is the other right that
we have to balance with it?

Employer’s right to info

about its employee!

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 Types of Info Employer Needs
What kinds of information does employer need
about an employee?

1. Contact information (home address,

telephone number, spouse’s work address
and number, medical doctor, etc.)

2. Health information (e.g., allergies,

medications, etc.)

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 Types of Info Employer Needs (cont’d)

3. Hours worked (payroll, qualification for

benefits, job efficiency)

4. Banking information (depositing pay

and other sorts of payments)

5. Type of vehicle and plate number

(parking reasons)
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 Balancing Act Becoming More Difficult

Why is the balancing act

between an employee’s
right to privacy and an
employer’s right to info
about an employee
becoming more difficult?

Technology!
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 Balancing Act Becoming More Difficult
(cont’d)
U.S. Supreme Court Justice William
Douglas has said, “We are rapidly
entering the age of no privacy, where
everyone is open to surveillance at all
times.”

Source: http://www.langmichener.ca

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 Balancing Act Becoming More Difficult
(cont’d)

According to one survey, 92% of

companies monitor the use of e-mail, the
Internet, and other workplace technology
(Michael Hoffman et al., “You’ve Got Mail . . . And the Boss Knows:
A Survey by the Centre for Business Ethics of Companies’ Email
and Internet Monitoring, Business and Society Review, vol. 108, no.
3, p. 305)

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 Balancing Act Becoming More Difficult
(cont’d)

TWO (2) GROUP PROBLEMS

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 The Legal Framework

1. If Employer is the Federal Gov’t or

Federal Crown Agency

Employee privacy rights are governed by

the Privacy Act, which was passed in
1982

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 The Legal Framework (cont’d)

2. If Employer is a Private Sector

Company Regulated by Federal Law

What are some examples of this kind of

employer?

Employee privacy rights regulated by

Personal Information Protection and Electronic
Documents Act (PIPEDA)

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 The Legal Framework (cont’d)

3. Provincial Public Sector in Ontario

Employee privacy rights governed by the

Ontario Freedom of Information and
Protection of Privacy Act, which was
passed in 1990 (covers universities,
colleges, hospitals, Ontario government)
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 The Legal Framework (cont’d)

4. Provincial Private Sector in Ontario

Not entirely clear but most act as if

PIPEDA does apply to employee
privacy, not just customer privacy

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 The Legal Framework (cont’d)

4. Provincial Private Sector in Ontario

Going to look at PIPEDA because

Ontario will likely pass privacy legislation
that is very similar to PIPEDA in the next
few years

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 PIPEDA
What is “personal information”?

(1) Any information that (2) identifies something

(3) about a person in their personal, and (4)
individual capacity (e.g., home
address, home telephone number or e-
mail address, date of birth, age, gender, marital
status, race, ethnic origin, religion, credit
information) (section 1 of PIPEDA)
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 PIPEDA (cont’d)

Your name and any information about you

associated with your employment by a
business is not personal information (e.g.,
your business title, e-mail address at work,
business telephone number) (s. 1 of
PIPEDA)

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 PIPEDA (cont’d)

PIPEDA Only Applies in Private Sector:

The rules in PIPEDA around the collection,

use, and disclosure of personal information
only apply to the private business sector

Thus, PIPEDA does not apply to universities,

colleges, hospitals, municipalities, and other
government agencies

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 PIPEDA (cont’d)

Not in B.C., Alberta & Quebec:

Although PIPEDA is a federal statute, the

provincial governments of B.C., Alberta, and
Quebec have an agreement with the feds
that the statute doesn’t apply in those
provinces
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 PIPEDA (cont’d)
In B.C., Alberta & Quebec:

In those three provinces, the provincial

governments have passed statutes of their own
regulating how private businesses use personal
information. These statutes are similar to, but not
identical to PIPEDA, so do your homework before
opening a business there

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 PIPEDA (cont’d)

Statute is Retroactive:

Although PIPEDA came

into law in 2004, it
nevertheless applies to
personal info collected by
a business before 2004

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 Requirements of PIPEDA

What does a business and its employees

have to do to comply with PIPEDA?

Basically, there are seven (7) different

requirements

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 Requirements of PIPEDA (cont’d)

1. Don’t Be Greedy!

Collect only the personal information

required for a specific purpose, no more
(e.g., for payroll purposes)

So, ask yourself, do I really need the person’s

social insurance number for payroll purposes?

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 Requirements of PIPEDA (cont’d)

2. Give a Full Explanation:

Explain clearly to the employee exactly

why you need the information that you are
collecting from them (e.g., we require it for
the pay equity plan)

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 Requirements of PIPEDA (cont’d)

3. No Monkey Business:

You can only use the information

collected for the exact purpose you told
the employee. You cannot use it for a
purpose not disclosed to the employee.

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 Requirements of PIPEDA (cont’d)

3. No Monkey Business (cont’d)

For example, you cannot collect

information about dependants for life
insurance purposes and then give that
information to a disability insurer for a
different kind of insurance coverage
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 Requirements of PIPEDA (cont’d)

4. Storage of Personal Data:

The employer must take all

reasonable steps to safeguard
personal info from theft,
unauthorized access, copying,
use or modification
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 Requirements of PIPEDA (cont’d)

4. Storage of Personal Data:

Safeguarding includes taking (1)

physical measures (locked building,
rooms, file cabinets, restricted access)

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 Requirements of PIPEDA (cont’d)

4. Storage of Personal Data (cont’d)

(2) Organizational safeguards such as

employee background checks, limited
access, etc.

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 Requirements of PIPEDA (cont’d)

4. Storage of Personal Data (cont’d)

(3) Technological measures such as

storage off the internet, use of
passwords, encryption, intrusion
detectors

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 Requirements of PIPEDA (cont’d)
5. Keep It To Yourself

No disclosure of personal info by a business to a

3rd party unless:

1. The employee has expressly consented to

that particular disclosure, or

2. The disclosure is pursuant to a court order

requiring it

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Requirements of PIPEDA (cont’d)
5. Keep It To Yourself (cont’d)

Cannot outsource pension benefit

calculations using employee information
unless get express new consent from
employees

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 Requirements of PIPEDA (cont’d)
6. Destruction Process

The business must have a

process set up to properly
destroy personal information
that is no longer required for
the business’s disclosed
purposes (e.g., physical
destruction of hard drives)

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 Requirements of PIPEDA (cont’d)
7. Organizational Requirements:

a. Create written procedures for

collection, use, and disclosure of
personal info

b. Assign specific employee(s) in writing the

task of ensuring that the written
procedures are followed by all employees

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 Requirements of PIPEDA (cont’d)

7. Organizational Requirements (cont’d)

c. Program in place to educate & train

employees about the business’s written
procedures for collecting and using
personal info

d. Written statements that explain to

employees the business’s procedures
on personal info collection and use

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 Requirements of PIPEDA (cont’d)

7. Organizational Requirements
(cont’d)

e. Establish a formal complaints

procedure for handling employee
complaints about how the business
has handled personal info

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 Surveillance of an Employee
A. On Duty Surveillance

Onus is on the employer to establish:

1. The measure is demonstrably necessary to meet a

specific employer need (e.g., protect property from theft); and,
2. The measure is likely to be effective in meeting that need; and,
3. The loss of privacy by the worker is proportionate to the benefit
gained by the employer; and,
4. There is no less privacy-invasive way to achieve the same end
as the video surveillance (Hunt, C. & Bell, C. (2014-15).
Employer Monitoring of Employee Online Activities outside
the Workplace: Not Taking Privacy Seriously? Canadian Lab. &
Emp. L.J. 18:411 at 431)
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Surveillance of an Employee (cont’d)

B. Off Duty Surveillance

Need some clear justification for starting the

surveillance, such as reasonable grounds
(not a hunch) to believe an employee is lying
or stealing or doing something else directly
relevant to work and surveillance cannot be
too intrusive
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 Monitoring Work Computer Usage

This area is in a state of flux due in part to

the recent decision of the Supreme Court of
Canada in R. v. Cole, 2012 SCC 33 (see
textbook at p. 329)

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 Monitoring Work Computer Usage
(cont’d)

Distribute and discuss summary of the case

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 Monitoring Work Computer Usage
(cont’d)

It seems that in certain situations, an

employee has an expectation of privacy
from his employer for personal data the
employee stores on a computer owned by
the employer

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 Monitoring Work Computer Usage
(cont’d)

Where the employer, in accessing such

data, violates the employee’s expectation of
privacy, then the employer cannot make any
use of whatever information is so collected
despite the fact the employer owns the
equipment

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 Mandatory and Random Drug and
Alcohol Testing

How could making an employee take a drug

or alcohol test be considered a violation of
right to privacy?

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 Mandatory and Random Drug and
Alcohol Testing (cont’d)
The law seems to be that if the job is not a safety sensitive
one (i.e., one that is inherently dangerous), then:

1. Prior to an incident or accident need a reasonable

cause for testing an employee (e.g., evidence of
impairment, just returned from rehabilitation)

2. Can test after an incident or accident where

drugs or alcohol may have been a factor

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 Mandatory and Random Drug and
Alcohol Testing (cont’d)
In a job that is safety-sensitive (i.e., inherently
dangerous), the SCC has said that the employer
must demonstrate a problem with substance
abuse AND that random drug or alcohol testing is
a proportionate response to that problem (see
Textbook at p. 148)

See for example drunk Sunwing pilot case at

http://globalnews.ca/video/3161165/federal-transport-minister-
responds-to-drunk-sunwing-pilots-arrest (Federal transport minister
responds to Drunk Sunwing pilots arrest)
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 Conclusion of Privacy Law

Questions?

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 The end!

… for now 

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